Soseeah v. Sentry Insurance ( 2015 )


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  •                                                                    FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
    
                                                                December 18, 2015
                                       PUBLISH                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                      UNITED STATES COURT OF APPEALS
    
                                   TENTH CIRCUIT
    
    
    
     DELBERT SOSEEAH, for himself and
     others similarly situated; MAXINE
     SOSEEAH, for herself and others
     similarly situated; JOHN BORREGO,
     for himself and other similarly
     situated,
    
           Plaintiffs-Appellees,
     v.                                                  No. 14-2199
     SENTRY INSURANCE, a Mutual
     Company, and any other related
     business entities including parent
     companies, consolidated tax filers and
     subsidiaries including, DAIRYLAND
     INSURANCE COMPANY; PEAK
     PROPERTY AND CASUALTY
     INSURANCE CORPORATION; and
     VIKING INSURANCE COMPANY
     OF WISCONSIN,
    
            Defendants-Appellants.
    
    
    
            APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF NEW MEXICO
                     (D.C. No. 1:12-CV-01091-RB-KK)
    
    
    John R. Gerstein, of Troutman Sanders LLP, Washington, D.C. (Gabriela
    Richeimer of Troutman Sanders LLP, Washington, D.C.; Jennifer A. Noya and
    Alex C. Walker of Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque,
    New Mexico, with him on the briefs), for Defendants-Appellants.
    John C. Bienvenu, of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg &
    Bienvenu LLP, Santa Fe, New Mexico (Kristina Martinez of Rothstein, Donatelli,
    Hughes, Dahlstrom, Schoenburg & Bienvenu LLP, Santa Fe, New Mexico; Linda
    G. Hemphill of The Hemphill Firm P.C., Santa Fe, New Mexico; and John
    Howard, Attorney at Law, Santa Fe, New Mexico, with him on the brief), for
    Plaintiffs-Appellees.
    
    
    
    Before BRISCOE, McKAY and McHUGH, Circuit Judges.
    
    
    BRISCOE, Circuit Judge.
    
    
    
          Plaintiffs Delbert Soseeah, Maxine Soseeah and John Borrego filed this
    
    action against defendants Sentry Insurance, Dairyland Insurance Company, Peak
    
    Property and Casualty Insurance Company, and Viking Insurance Company of
    
    Wisconsin (collectively Sentry) claiming, in part, that Sentry failed to timely and
    
    properly notify them and other Sentry automobile insurance policyholders of the
    
    impact of two New Mexico Supreme Court decisions regarding the availability of
    
    uninsured and underinsured motorist coverage under their respective policies.
    
    The district court granted plaintiffs’ motion for class certification. Sentry
    
    subsequently sought and was granted permission to appeal the district court’s
    
    class certification ruling. Exercising jurisdiction pursuant to 28 U.S.C. § 1292(e)
    
    and Fed. R. Civ. P. 23(f), we reverse and remand for further consideration of
    
    plaintiffs’ motion for class certification.
    
    
    
                                                  2
                                               I
    
                          The Weed Warrior and Jordan decisions
    
          On October 18, 2010, the Supreme Court of New Mexico issued two related
    
    decisions addressing the provision of uninsured/underinsured motorist (UM/UIM)
    
    coverage by insurers to New Mexico residents. In the first decision, Progressive
    
    Northwestern Insurance Co. v. Weed Warrior Services, 
    245 P.3d 1209
     (N.M.
    
    2010), the New Mexico Supreme Court “consider[ed] the duty imposed on
    
    insurers to offer uninsured/underinsured motorist (UM/UIM) coverage under
    
    NMSA 1978, Section 66-5-301 (1983).” 245 P.3d at 1210. More specifically, the
    
    New Mexico Supreme Court addressed the question, certified to it by this court,
    
    “of whether the election by an insured to purchase UM/UIM coverage in an
    
    amount less than the policy liability limits constitutes a rejection of the maximum
    
    amount of UM/UIM coverage permitted under Section 66-5-301.” Id. After
    
    reviewing the language of the statute and surveying its own case law interpreting
    
    that statute, the New Mexico Supreme Court
    
          conclude[d] that Section 66-5-301 requires an insurer to offer
          UM/UIM coverage in an amount equal to the liability limits of the
          policy and that the choice of the insured to purchase any lower
          amount functions as a rejection of that maximum amount of coverage
          statutorily possible.
    
    Id. at 1214. Consequently, the New Mexico Supreme Court held that “the insurer
    
    may not exclude the maximum possible level of UM/UIM coverage in an auto
    
    liability policy unless it has offered it to the insured and the insured has exercised
    
                                               3
    the right to reject the coverage through some positive act.” Id. at 1213 (internal
    
    quotation marks omitted).
    
          The second case, Jordan v. Allstate Insurance Co., 
    245 P.3d 1214
     (N.M.
    
    2010), was intended by the New Mexico Supreme Court as a companion to Weed
    
    Warrior in order “to provide guidance on the technical requirements for valid
    
    offers and rejections of UM/UIM coverage.” 245 P.3d at 1219. The court held
    
          that a rejection of UM/UIM coverage equal to the liability limits in
          an automobile insurance policy must be made in writing and must be
          made a part of the insurance policy that is delivered to the insured.
          In order to honor these requirements effectively, insurers must
          provide the insured with the premium charges corresponding to each
          available option for UM/UIM coverage so that the insured can make
          a knowing and intelligent decision to receive or reject the full
          amount of coverage to which the insured is statutorily entitled. If an
          insurer fails to obtain a valid rejection [for any reason], the policy
          will be reformed to provide UM/UIM coverage equal to the limits of
          liability.
    
    Id. at 1217. The court also held that its decision applied retroactively and was not
    
    limited to prospective application. Id. at 1222-23. And the court emphasized that
    
    the cost of reforming existing policies would be borne solely by insurers. Id. at
    
    1223 (“On balance, we deem it more equitable to let the financial detriments be
    
    borne by insurers, who were in a better position to ensure meaningful compliance
    
    with the law, than to let the burdens fall on non-expert insureds, who are the
    
    Legislature’s intended beneficiaries.”).
    
                                  The filing of this action
    
          On September 18, 2012, plaintiffs Delbert and Maxine Soseeah filed a
    
                                               4
    purported class action complaint against Sentry in New Mexico state district
    
    court. The complaint alleged that Delbert Soseeah, after being injured in a motor
    
    vehicle accident, made a claim for UM/UIM benefits under two policies of
    
    automobile insurance issued by Sentry to Mrs. Soseeah. According to the
    
    complaint, Mrs. Soseeah “never executed a valid waiver of UM/UIM coverage
    
    under the” two policies and, consequently, Mr. Soseeah “demanded that . . .
    
    Sentry reform” the two policies “to provide stacked uninsured/underinsured
    
    motorist coverage limits equal to the limits of the liability coverage on each of the
    
    vehicles covered by the” policies “in accordance with the decisions in Jordan and
    
    Weed Warrior.” Dist. Ct. Docket No. 1, Exh. A at 4. Sentry purportedly refused
    
    to reform the policies and rejected Mr. Soseeah’s claim for UM/UIM benefits. Id.
    
    The complaint alleged that Sentry, by doing so, violated New Mexico’s Unfair
    
    Practices Act (UPA), N.M. Stat. Ann. § 57-12-1 et seq., violated a portion of New
    
    Mexico’s Insurance Code known as the Trade Practices and Frauds Act (TPFA),
    
    N.M. Stat. Ann. § 59A-16-1 et seq., breached the implied covenant of good faith
    
    and fair dealing, and breached the terms of the two policies.
    
          Notably, the complaint alleged that the Soseeahs’ claims were
    
    representative of “all Sentry-insured New Mexico residents entitled to the benefits
    
    of UM/UIM coverage who failed to receive notification from . . . Sentry that
    
    UM/UIM coverage limits were, as a matter of law, reformed [by Weed Warrior
    
    and Jordan] to provide coverage equal to liability limits.” Id. at 6-7. The
    
                                              5
    complaint in turn alleged that the “action should proceed as a class action” under
    
    New Mexico state law. Id. at 8. Lastly, the complaint alleged that the named
    
    plaintiffs and the class should “recover treble damages” and “attorney’s fees and
    
    costs” in connection with their UPA claim, id. at 11, damages in connection with
    
    their TPFA claim, id. at 13, reformation of their policies to provide “UM/UIM
    
    coverage with limits in an amount equal to the limits of the liability coverage of
    
    the policies at issue,” id. at 13, actual and punitive damages in connection with
    
    their claim for breach of the implied covenant of good faith and fair dealing, id. at
    
    14, actual damages in connection with their breach of contract claim, id.,
    
    injunctive relief “requiring that . . . Sentry be enjoined from continuing practices
    
    that violate the statutory duties as well as the contractual and legal obligations
    
    owed to the [named] Plaintiffs and the Class,” id., a “declaratory judgment
    
    establishing the respective rights and obligations of the parties with respect to the
    
    claims set forth” in the complaint, id. at 15, and punitive damages, id.
    
                 Removal to federal court and amendment of the complaint
    
          On October 22, 2012, Sentry removed the action to the United States
    
    District Court for the District of New Mexico pursuant to 28 U.S.C. §§ 1441,
    
    1446, and 1453. Soon thereafter, plaintiffs filed a first amended class action
    
    complaint. That was later followed by a second, a third, and, ultimately, a fourth
    
    amended class action complaint.
    
    
    
    
                                               6
                               The Fourth Amended Complaint
    
          The fourth amended complaint continued to list Delbert and Maxine
    
    Soseeah as the lead plaintiffs and included many of the same factual allegations
    
    that were included in the original complaint. The fourth amended complaint,
    
    however, expanded substantially upon the original complaint by discussing the
    
    impact Weed Warrior and Jordan had upon the Soseeahs’ policies and Sentry’s
    
    response or lack thereof to Weed Warrior and Jordan. To begin with, the
    
    complaint alleged that the Soseeahs’ purported rejection of UM/UIM coverage on
    
    their Sentry policies was, for several reasons, “legally insufficient” under Weed
    
    Warrior and Jordan. Dist. Ct. Docket No. 131 at 5. The complaint further alleged
    
    that in early 2011, Sentry “sent to every policyholder with a policy then in force
    
    that had rejected UM/UIM coverage, including Plaintiff Maxine Soseeah, a form
    
    letter [(referred to in this litigation as the “IMPORTANT NOTICE”)] and follow-
    
    up form letter [(referred to in this litigation as the “FINAL NOTICE”)].” Id. at 6.
    
    Both letters stated that “[i]n . . . 2010, the New Mexico Supreme Court issued a
    
    ruling requiring new information to be provided with Uninsured Motorist . . .
    
    coverage selection forms,” id., Att. 1, Exh. A at 1, and in turn advised
    
    policyholders “that they had to sign a new waiver or ‘Your Premium Will Go
    
    Up,’” id. at 6. The complaint also alleged that “[i]n January 2012, Defendants
    
    sent another form letter to certain policyholders [(referred to in this litigation as
    
    the “IMPORTANT NOTICE OF POTENTIAL COVERAGE”)], including [Mrs.]
    
                                               7
    Soseeah, advising them that they may have UM/UIM coverage.” Id. All of these
    
    letters, the complaint alleged, were “misleading and inaccurate” in light of Weed
    
    Warrior and Jordan. Id. at 6-7. The complaint further alleged that Sentry’s
    
    “obligation of good faith and fair dealing to its insureds required it to reform
    
    coverage and provide a clear simple notice of reformed coverage and a right to
    
    make a claim in a timely fashion after the [two] decision[s].” Id. at 7. With
    
    respect to the Soseeahs individually, the fourth amended complaint alleged that
    
    “Sentry never notified the[m] . . . that their initial signed purported waiver of
    
    UM/UIM coverage was invalid” or that they “in fact under New Mexico law had
    
    UM/UIM coverage from the policies’ inception through and including the date of
    
    their demand.” Id. at 8.
    
          The fourth amended complaint included a third plaintiff named John
    
    Borrego and added factual allegations relating to Borrego. According to the
    
    fourth amended complaint, Borrego purchased a policy of insurance from Sentry
    
    that provided coverage for two personal vehicles. The complaint alleged that
    
    after Weed Warrior and Jordan were issued, “Sentry had an affirmative obligation
    
    to notify . . . Borrego and all other similarly situated New Mexico policyholders
    
    that their policies were reformed and that they had UM/UIM coverage in an
    
    amount equal to the level of the bodily injury liability limits under their policies.”
    
    Id. at 11-12. The complaint further alleged that in April 2006, Borrego was
    
    seriously injured in a motor vehicle accident. “By letter of November 20, 2012,
    
                                               8
    after the class action complaint in this matter had been filed, . . . Borrego
    
    requested that Sentry provide stacked UM/UIM coverage equal to the bodily
    
    injury liability coverage on each vehicle.” Id. at 12. According to the complaint,
    
    “Sentry subsequently agreed to provide stacked UM/UIM coverage to . . .
    
    Borrego.” Id.
    
          The “Class Action Allegations” section of the fourth amended complaint
    
    alleged that “all insurance policies issued by Defendant Sentry to New Mexico
    
    policyholders [we]re uniform in all respects material to [the] claims” asserted by
    
    the named plaintiffs, id., and that “all forms used by Defendant Sentry for
    
    putative rejection of UM/UIM insurance coverage [we]re [also] uniform in all
    
    respects material to [the] claims brought” by plaintiffs, id. at 13. The section in
    
    turn defined the proposed class as “[a]ll insureds under policies issued in New
    
    Mexico by Sentry and its related entities . . . from January 1, 1995 to April 1,
    
    2011 in which UM/UIM coverage was purportedly rejected.” Id. The section
    
    alleged that “[b]ecause no such rejections were in conformance with New Mexico
    
    law as set forth in Jordan and Weed Warrior, all such insureds [we]re entitled to
    
    reformation and proper and adequate notice.” Id. The section further alleged that
    
    certification of the proposed class was “desirable and proper because there [we]re
    
    questions of law and fact . . . common to all members of the Class,” including
    
    whether Sentry’s “acts and practices” amounted to “a breach of its contractual
    
    obligations with respect to its New Mexico policyholders,” “breached the implied
    
                                               9
    covenant of good faith and fair dealing with respect to the policies issued to New
    
    Mexicans,” and “constitute[d] unfair or deceptive trade practices or
    
    unconscionable trade practices.” Id. at 14-15.
    
          The specific claims alleged in the fourth amended complaint, and the forms
    
    of relief sought in connection with those claims, were essentially identical to
    
    those alleged in the original complaint.
    
                                Dismissal of the TPFA claim
    
          On July 10, 2014, the district court, acting pursuant to Sentry’s motion,
    
    dismissed without prejudice plaintiffs’ TPFA claim. In doing so, the district court
    
    concluded that “[t]he plain language of the statute clearly limits recovery to
    
    actual damages and only gives the [New Mexico] Superintendent of Insurance the
    
    power to seek injunctions.” Dist. Ct. Docket No. 134 at 12-13. The district court
    
    emphasized that “[p]laintiffs [we]re free to pursue their claims for injunctive and
    
    declaratory relief under another cause of action.” Id. at 13.
    
          Although Sentry also moved to dismiss the remainder of plaintiffs’ claims
    
    on the grounds that there was no allegation of irreparable harm, the district court
    
    disagreed and denied Sentry’s motion.
    
                                     Class certification
    
          Plaintiffs moved for certification of the class identified in the fourth
    
    amended complaint. On September 26, 2014, the district court issued a
    
    memorandum opinion and order granting plaintiffs’ motion as to the following
    
                                               10
    class:
    
             All insureds under policies issued in New Mexico by Sentry and its
             related entities . . . from May 20, 2004 to April 1, 2011 in which
             UM/UIM coverage was purportedly rejected. . . . Included as
             subclasses are: (1) insured[s] who received the “IMPORTANT
             NOTICE” and “FINAL NOTICE” . . . ; and (2) insured[s] who
             received the “IMPORTANT NOTICE OF POTENTIAL
             COVERAGE.”
    
    Dist. Ct. Docket No. 136 at 3. 1
    
             In doing so, the district court determined that all four of the prerequisites
    
    outlined in Fed. R. Civ. P. 23(a) were satisfied. More specifically, the district
    
    court concluded:
    
             1) that “the numerosity requirement [wa]s satisfied” because
             “Defendant Sentry conceded in discovery that at least 36,000
             potential claimants signed rejections and may be entitled to
             reformation of their policies,” and “Sentry d[id] not contest that
             joinder of so many individuals would be impracticable,” id. at 5;
    
             2) that plaintiffs “met the commonality requirement” because “the
             potential class members . . . experienced the same injury,” i.e., “the
             lack of proper notice of the coverage available to the policy holders
             after Jordan and Weed Warrior,” “in spite of the factual differences
             between them,” id. at 7;
    
             3) that plaintiffs “satisfied the typicality requirement,” id. at 9,
             because “the proposed class consist[ed] of policyholders who
             received inadequate notice from Defendant Sentry,” id. at 8, and thus
             “the claims . . . ar[o]se from the same course of events and all
             proposed class members were subjected to the same harmful
             practices,” id. at 8-9; and
    
             1
            The record suggests that there are two general categories of insureds who
    rejected UM/UIM coverage during this time period: (1) those who rejected it
    without signing any type of rejection form; and (2) those who rejected it by
    signing a pre-Jordan rejection form.
    
                                                11
          4) that the named plaintiffs were “adequate representatives of the
          class,” id. at 11, and that “[p]laintiffs’ attorneys [we]re adequate to
          represent the class,” id. at 13.
    
          The district court in turn concluded that plaintiffs “met the requirements of
    
    Rule 23(b)(2) for certification of the proposed class.” Id. at 15. In reaching this
    
    conclusion, the district court noted that
    
          [p]laintiffs requested the following remedies: (1) an injunction that
          prohibits Defendant Sentry from continuing to engage in practices
          that violate its duties and contractual and legal obligations owed to
          Plaintiffs and the proposed class; and (2) an injunction requiring
          Defendant Sentry to give notice to all class members that the Jordan
          and Weed Warrior decisions mandate that they are entitled to
          UM/UIM coverage equal to liability coverage, and of their right to
          make a UM/UIM claims notwithstanding the fact that they had
          previously rejected UM/UIM coverage, because the rejection was
          invalid.
    
    Id. at 14-15. In other words, the district court concluded that this requested
    
    injunction was “sufficiently specific . . . to meet the requirements of Rule
    
    23(b)(2).” Id. at 15.
    
          In sum, the district court concluded that plaintiffs “established the
    
    requirements for certification of the proposed class pursuant to Federal Rule of
    
    Civil Procedure 23(b)(2)” and that “[a] class action [wa]s the fairest and most
    
    efficient manner of litigating the injunctive claims at issue in the . . . case.” Id.
    
                                        Sentry’s appeal
    
          Sentry sought and was granted permission by this court pursuant to Fed. R.
    
    Civ. P. 23(f) to appeal the district court’s interlocutory order granting plaintiffs’
    
    
                                                12
    motion for certification of the class identified in the fourth amended complaint.
    
                                               II
    
                                     Standards of review
    
          “We review the district court’s decision to certify the class for an abuse of
    
    discretion.” Tennille v. W. Union Co., 
    785 F.3d 422
    , 430 (10th Cir. 2015). “The
    
    district court abuses its discretion when it misapplies the Rule 23 factors—either
    
    through a clearly erroneous finding of fact or an erroneous conclusion of law—in
    
    deciding whether class certification is appropriate.” CGC Holding Co. v. Broad
    
    & Cassel, 
    773 F.3d 1076
    , 1085-86 (10th Cir. 2014). “Our review is only de novo
    
    to the extent we must determine whether the district court applied the correct
    
    standard.” Id. at 1086. “In the end, as long as the district court applies the
    
    proper Rule 23 standard, we will defer to its class certification ruling provided
    
    that decision falls within the bounds of rationally available choices given the facts
    
    and law involved in the matter at hand.” Id. (internal quotation marks and
    
    brackets omitted).
    
                                Class certification standards
    
          “Class certification is governed by Federal Rule of Civil Procedure 23.”
    
    Wal-Mart Stores, Inc. v. Dukes, 
    131 S. Ct. 2541
    , 2548 (2011). Rule 23(a)
    
    requires the party seeking class certification to satisfy four prerequisites:
    
          One or more members of a class may sue or be sued as
          representatives on behalf of all members only if:
          (1)   the class is so numerous that joinder of all members is
    
                                              13
                 impracticable;
          (2)    there are questions of law or fact common to the class;
          (3)    the claims or defenses of the representative parties are typical
                 of the claims or defenses of the class; and
          (4)    the representative parties will fairly and adequately protect the
                 interests of the class.
    
    Fed. R. Civ. P. 23(a). In addition, “the proposed class must satisfy at least one of
    
    the three requirements listed in Rule 23(b).” Wal-Mart, 131 S. Ct. at 2548. In
    
    this case, the plaintiffs and the district court relied on Rule 23(b)(2), which states:
    
          the party opposing the class has acted or refused to act on grounds
          that apply generally to the class, so that final injunctive relief or
          corresponding declaratory relief is appropriate respecting the class as
          a whole.
    
    Fed. R. Civ. P. 23(b)(2).
    
                       The district court’s commonality determination
    
          Sentry’s arguments on appeal focus on the district court’s commonality
    
    determination. As discussed in greater detail below, we agree with Sentry that the
    
    district court abused its discretion in concluding that the general class it certified
    
    satisfied Rule 23(a)(2)’s commonality requirement.
    
          a) The meaning of Rule 23(a)(2)’s commonality requirement
    
          In Wal-Mart, the Supreme Court expounded on the meaning of Rule
    
    23(a)(2)’s commonality requirement:
    
          Commonality requires the plaintiff to demonstrate that the class
          members “have suffered the same injury.” [Gen. Tel. Co. of Sw. v.
          Falcon, 
    457 U.S. 147
    , 157 (1982)]. This does not mean merely that
          they have all suffered a violation of the same provision of law. Title
          VII, for example, can be violated in many ways—by intentional
    
                                               14
          discrimination, or by hiring and promotion criteria that result in
          disparate impact, and by the use of these practices on the part of
          many different superiors in a single company. Quite obviously, the
          mere claim by employees of the same company that they have
          suffered a Title VII injury, or even a disparate-impact Title VII
          injury, gives no cause to believe that all their claims can productively
          be litigated at once. Their claims must depend upon a common
          contention—for example, the assertion of discriminatory bias on the
          part of the same supervisor. That common contention, moreover,
          must be of such a nature that it is capable of classwide
          resolution—which means that determination of its truth or falsity will
          resolve an issue that is central to the validity of each one of the
          claims in one stroke. * * *
    
              Rule 23 does not set forth a mere pleading standard. A party
          seeking class certification must affirmatively demonstrate his
          compliance with the Rule—that is, he must be prepared to prove that
          there are in fact sufficiently numerous parties, common questions of
          law or fact, etc. We recognized in Falcon that “sometimes it may be
          necessary for the court to probe behind the pleadings before coming
          to rest on the certification question,” 457 U.S., at 160, 
    102 S. Ct. 2364
    , and that certification is proper only if “the trial court is
          satisfied, after a rigorous analysis, that the prerequisites of Rule
          23(a) have been satisfied,” id., at 161, 
    102 S. Ct. 2364
    ; see id., at
          160, 
    102 S. Ct. 2364
     (“[A]ctual, not presumed, conformance with
          Rule 23(a) remains . . . indispensable”). Frequently that “rigorous
          analysis” will entail some overlap with the merits of the plaintiff’s
          underlying claim. That cannot be helped. “‘[T]he class
          determination generally involves considerations that are enmeshed in
          the factual and legal issues comprising the plaintiff's cause of
          action.’” Falcon, supra, at 160, 
    102 S. Ct. 2364
     (quoting Coopers &
          Lybrand v. Livesay, 
    437 U.S. 463
    , 469, 
    98 S. Ct. 2454
    , 
    57 L. Ed. 2d 351
     (1978); some internal quotation marks omitted). Nor is there
          anything unusual about that consequence: The necessity of touching
          aspects of the merits in order to resolve preliminary matters, e.g.,
          jurisdiction and venue, is a familiar feature of litigation. See Szabo
          v. Bridgeport Machines, Inc., 
    249 F.3d 672
    , 676–677 (C.A.7 2001)
          (Easterbrook, J.).
    
    131 S. Ct. at 2551-52 (footnote omitted).
    
    
                                             15
          b) Did the district court err in finding any class-wide injury?
    
          Sentry argues that the district court’s “most glaring error was finding a
    
    common injury where the vast majority of class members suffered no legally
    
    cognizable injury at all.” Aplt. Br. at 37 (emphasis in original). More
    
    specifically, Sentry asserts that “Plaintiffs have no right in contract, tort or any
    
    other law to a purely inchoate ‘notice’ from the insurance company—without ever
    
    tendering a claim for benefits—that their automobile insurance policies were
    
    being reformed retroactively to provide UM coverage where it had been rejected
    
    without the required Jordan disclosures.” Id. at 39. “And,” Sentry argues,
    
    “Plaintiffs neither claim, nor is it so, that the New Mexico Department of
    
    Insurance has required any such notice.” Id. In short, Sentry argues that
    
    “[p]urported lack of notice of the change in UM law after Jordan and Weed
    
    Warrior . . . is not a common injury or, indeed, any injury at all.” Id. at 42
    
    (emphasis in original).
    
          To determine whether the certified class of plaintiffs suffered a common
    
    and legally cognizable injury, we focus our attention on whether the plaintiffs
    
    have alleged the violation of any recognized legal duty on the part of Sentry. As
    
    the Seventh Circuit recognized in a somewhat similar proposed class action case,
    
    “a claim of injury is not cognizable unless it results from the breach of a
    
    recognized legal duty owed to the plaintiff.” Kartman v. State Farm Mut. Auto.
    
    Ins. Co., 
    634 F.3d 883
    , 889 (7th Cir. 2011). Any such recognized legal duty on
    
                                               16
    the part of Sentry in this case would have to arise under one of three sources
    
    identified in the claims that remain pending before the district court: (1) the UPA,
    
    (2) New Mexico contract law, which provides the basis for plaintiffs’ breach of
    
    contract claim against Sentry, or (3) New Mexico tort law, which provides the
    
    basis for plaintiffs’ bad faith claim against Sentry.
    
          The UPA prohibits certain types of acts that occur “in connection with the
    
    sale, lease, rental or loan of goods or services or in the extension of credit or in
    
    the collection of debts by a person in the regular course of the person’s trade or
    
    commerce.” N.M. Stat. Ann. § 57-12-2(D) (defining the phrase “unfair or
    
    deceptive trade practice”). The bulk of plaintiffs’ UPA allegations, and the ones
    
    that the district court specifically focused upon in granting plaintiffs’ motion for
    
    class certification, concern the steps that Sentry took, or allegedly failed to take,
    
    in notifying existing policyholders of the impact of Weed Warrior and Jordan.
    
    Because that alleged conduct occurred after, rather than in connection with, the
    
    sale of the policies at issue, we conclude it falls outside of the scope of the plain
    
    language of the UPA. Consequently, we conclude that the UPA did not impose
    
    any duty on Sentry with respect to notifying existing policyholders of the impact
    
    of Weed Warrior and Jordan. 2
    
          2
            To be sure, the fourth amended complaint alleges that Sentry violated the
    UPA, in part, by “using rejection forms for UM/UIM coverage that failed to
    inform consumers of their choices adequately.” Dist. Ct. Docket No. 131 at 17.
    Presumably, this language was intended to focus on Sentry’s acts at the time it
                                                                         (continued...)
    
                                               17
          Plaintiffs also allege in the fourth amended complaint that Sentry breached
    
    the terms of the various policies of insurance that are encompassed by the
    
    certified class. But plaintiffs have not identified a single contractual provision in
    
    any of the policies at issue, let alone one that is contained in all of the policies at
    
    issue, that would have imposed a duty on Sentry to inform the certified class of
    
    the impact of Weed Warrior and Jordan. 3 Consequently, we conclude that the
    
    plaintiffs’ breach of contract claim cannot give rise to the common injury
    
    required by Fed. R. Civ. P. 23(a)(2) for class certification.
    
    
    
          2
            (...continued)
    issued the respective policies of insurance to the members of the certified class.
    Further, in their motion for class certification, plaintiffs suggested that Sentry
    continued using improper rejection forms for UM/UIM coverage after the
    issuance of Weed Warrior and Jordan. Because the UPA’s definition of the
    phrase “unfair or deceptive trade practice” appears to us to encompass the sale or
    issuance by an insurer of a policy of insurance to an insured, we conclude that
    this portion of plaintiffs’ UPA claim identified a legally cognizable duty that
    Sentry allegedly violated.
           It does not appear to us, however, that the district court took these
    particular allegations into consideration in concluding that the general certified
    class satisfied Rule 23(a)(2)’s commonality requirement. And, in any event, we
    conclude that this alleged violation does not give rise to an injury common to
    either the general certified class or either of the two subclasses identified by the
    district court.
           Of course, the district court is free on remand to take these particular
    allegations into consideration in deciding whether to certify a new and separate
    class (i.e., a class distinct from the general class and subclasses that it previously
    certified).
          3
            Under Wal-Mart, it is not enough for plaintiffs to merely allege that some
    policy provision imposes this duty. Instead, plaintiffs must identify with
    specificity a common policy provision that imposes this duty. See 131 S. Ct. at
    2551. Notably, plaintiffs have failed to do so.
    
                                               18
          That leaves only plaintiffs’ bad faith tort claim. Under New Mexico law,
    
    each insurance contract includes “an implied covenant of good faith and fair
    
    dealing that the insurer will not injure its policyholder’s right to receive the full
    
    benefits of the contract.” 4 Dairyland Ins. Co. v. Herman, 
    954 P.2d 56
    , 60 (N.M.
    
    1997). “[T]his means that an insurer cannot be partial to its own interests, but
    
    must give its interests and the interests of its insured equal consideration.” Id. at
    
    61 (internal quotation marks omitted). “[T]he implied covenant of good faith and
    
    fair dealing protects against only bad faith or wrongful and intentional conduct
    
    that injures the other party’s rights under the contract . . .” Azar v. Prudential
    
    Ins. Co. of Am., 
    68 P.3d 909
    , 927 (N.M. Ct. App. 2003).
    
          Even if we were to assume that Sentry acted in bad faith with respect to all
    
    of the policyholders identified in the general certified class by failing to inform
    
    them of the impact of Weed Warrior and Jordan on their respective policies, we
    
    are not persuaded that plaintiffs have alleged, let alone made any attempt to
    
    establish, that such conduct injured every policyholder’s rights under their
    
    respective policies. Indeed, we fail to see how the purported lack of notice and
    
    information could have injured a policyholder in the absence of a viable claim
    
    against Sentry for UM/UIM benefits. And there appears to be little dispute that
    
          4
            The class certified by the district court is not limited to Sentry
    policyholders, and instead includes anyone that could be insured under any Sentry
    policy issued during the relevant time period. As Sentry aptly notes, however, it
    “has no duty to send any notice to unknown insureds with unknown—let alone
    no—UM claims.” Aplt. Br. at 42 (emphasis in original).
    
                                               19
    many, if not most, of the certified class members do not have any such claim at
    
    all. As a result, there is simply no common injury among the general certified
    
    class that would satisfy the requirements of Fed. R. Civ. P. 23(a)(2) for purposes
    
    of the plaintiffs’ bad faith claim. 5
    
           To be sure, plaintiffs suggest that the New Mexico Supreme Court’s
    
    decision in Salas v. Mountain States Mut. Cas. Co., 
    202 P.3d 801
     (N.M. 2009),
    
    supports their bad faith claim and indicates that an insurer’s failure to disclose
    
    necessarily gives rise to a valid bad faith claim under New Mexico state law. In
    
    other words, plaintiffs suggest that, under Salas, an insurer injures an insured
    
    merely by failing to disclose to the insured relevant information about the policy
    
    at issue. We disagree.
    
           Salas dealt primarily with a breach of contract claim brought by an injured
    
    
           5
             Relatedly, the injunction sought by plaintiffs in connection with their bad
    faith claim would not “be a final remedy.” Kartman, 634 F.3d at 886. To the
    contrary, the requested injunctive relief, i.e., “compel[ling] . . . Sentry to give
    notice to all class members of the effect of the Jordan and Weed Warrior
    decisions on their UM/UIM coverage,” Dist. Ct. Docket No. 131 at 26 (Fourth
    Amended Complaint), would, at best, “only lay an evidentiary foundation for
    subsequent individual determinations of [UM/UIM] liability and damages,”
    Kartman, 634 F.3d at 886. And “the class-action device is not appropriate for
    resolving such highly individualized questions of fact” (not to mention that such
    questions are not alleged at all in the Fourth Amended Complaint). Id. at 891; see
    also Jamie S. v. Milwaukee Pub. Sch., 
    668 F.3d 481
    , 499 (7th Cir. 2012) (“[A]
    claim for class-wide injunctive and declaratory relief does not satisfy Rule
    23(b)(2) if as a substantive matter the relief sought would merely initiate a
    process through which highly individualized determinations of liability and
    remedy are made; this kind of relief would be class-wide in name only, and it
    would certainly not be final.”).
    
                                             20
    class-two insured who had been denied UIM benefits by the defendant insurer,
    
    and the key question before the New Mexico Supreme Court was whether the
    
    insurer could defend against that claim on the basis of an exclusionary provision
    
    that it failed to disclose to the insured. The New Mexico Supreme Court, after
    
    outlining the circumstances under which an insurer must disclose policy
    
    information to a class-two insured, concluded that the defendant insurer had
    
    violated this duty of disclosure to the plaintiff insured and was therefore estopped
    
    from enforcing against the insured an undisclosed exclusionary provision to limit
    
    or deny the insured’s entitlement to UIM benefits under the policy. 202 P.3d at
    
    807-09.
    
          In our view, there are at least two reasons why Salas fails to support the
    
    bad faith theory urged by the plaintiffs in this case. First, nothing in Salas states
    
    that an insurer’s failure to disclose, standing alone, gives rise to a bad faith claim.
    
    Indeed, although the plaintiff in Salas asserted a bad faith claim in addition to her
    
    breach of contract claim, the New Mexico Supreme Court did not address the bad
    
    faith claim at all (because the New Mexico Court of Appeals failed to address that
    
    claim in the first instance). Thus, the holding in Salas must necessarily be read as
    
    limited to breach of contract claims brought by an insured against an insurer.
    
          Second, to the extent that the New Mexico Supreme Court in Salas touched
    
    upon an insurer’s duty of good faith to its insured (and, again, it did so only in the
    
    context of addressing the plaintiff’s breach of contract claim), it simply repeated
    
                                               21
    the principles that we have already recognized, i.e., that the implied covenant of
    
    good faith and fair dealing requires “that the insurer will not injure its [insured]’s
    
    right to receive the full benefits of the contract.” 202 P.3d. at 805 (quoting
    
    Dairyland Ins. Co. v. Herman, 
    954 P.2d 56
    , 60 (N.M. 1997)). Nothing in this
    
    language supports the plaintiffs’ theory that an insurer’s failure to give notice,
    
    without any resulting infringement upon an insured’s rights under the contract,
    
    can give rise to a valid bad faith claim.
    
          Because plaintiffs have failed to establish that all members of the general
    
    certified class suffered the common injury required by Rule 23(a)(2), we conclude
    
    that the district court abused its discretion in certifying the general class. 6
    
                        The subclasses identified by the district court
    
          The district court, in addition to certifying the general class, identified the
    
    following two subclasses: “(1) insured[s] who received the ‘IMPORTANT
    
    NOTICE’ and ‘FINAL NOTICE’ . . . ; and (2) insured[s] who received the
    
    ‘IMPORTANT NOTICE OF POTENTIAL COVERAGE.’” Dist. Ct. Docket No.
    
    136 at 3.
    
          The members of the first subclass were Sentry policyholders who, in early
    
    2011, received from Sentry the form letters entitled “IMPORTANT NOTICE” and
    
    “FINAL NOTICE.” Neither of these letters informed the recipient policyholders
    
          6
            Having reached this conclusion, we find it unnecessary to address
    Sentry’s other challenges to the district court’s commonality determination
    regarding the general class.
    
                                                22
    that their policies had been automatically reformed, without any additional
    
    premium, to include UM/UIM coverage equal to the liability limits of the
    
    policies. Instead, the letters stated that (a) the policyholders had to return the
    
    enclosed UM Coverage Selection Form, (b) Sentry could keep the UM/UIM limits
    
    below the liability limits of the policies if the policyholders so chose, and (c)
    
    Sentry could charge the policyholders an additional premium for UM/UIM
    
    coverage in an amount equal to liability coverage.
    
          The members of the second subclass were Sentry policyholders who, in
    
    2012, received from Sentry a form letter entitled “IMPORTANT NOTICE OF
    
    POTENTIAL COVERAGE.” Each member of this subclass was purportedly
    
    involved in some type of accident that potentially implicated UM/UIM coverage
    
    under their respective Sentry policies. The letter mentioned Weed Warrior and
    
    Jordan by name and purported to outline the potential effects of these decisions.
    
          Notably, Federal Rule of Civil Procedure 23(c)(5) states that “[w]hen
    
    appropriate, a class action may be divided into subclasses that are each treated as
    
    a class under this rule.” Fed. R. Civ. P. 23(c)(5). Thus, notwithstanding our
    
    conclusion that the general class certified by the district court fails to meet the
    
    commonality requirements of Rule 23(a)(2), the question remains whether either
    
    or both of the subclasses identified by the district court can independently satisfy
    
    the requirements of Rule 23 and be allowed to proceed.
    
          Because the district court’s certification ruling did not expressly address
    
                                              23
    the Rule 23 factors as they applied to each of the identified subclasses, we do not
    
    have enough information to determine whether the district court abused its
    
    discretion in certifying the two subclasses. Consequently, we direct the district
    
    court on remand to address these issues.
    
                                               III
    
          The district court’s order is REVERSED and the case is REMANDED to
    
    the district court for further consideration of plaintiffs’ motion for class
    
    certification. Sentry’s unopposed motion for leave to file exhibit under seal is
    
    GRANTED.
    
    
    
    
                                               24